Sinclair v. State , 161 Miss. 142 ( 1931 )

A state legislature possesses all the state's legislative power except such as has been delegated to Congress, or is expressly or impliedly withheld from it by the state or federal constitutions, and "the only test of the validity of an act regularly passed by a state Legislature is whether or not it violates the limitation imposed by the state or federal Constitution in express terms or by clear implication." 12 C.J. 749. This limitation must be found in some particular section of the Constitution. Rohrbacher v. Mayor and Aldermen, City of Jackson, 51 Miss. at page 745; Johnson v. Reeves Co., 112 Miss. 227, 72 So. 925. For the courts have not the right to refuse to enforce statutes merely because "they are unjust and repugnant to the general principles of justice, liberty, or rights not expressed in constitutional provisions;" violate the spirit supposed by the judges to pervade the Constitution; are against public policy or are unwise and impolitic. 12 C.J. 754 et seq.; 6 R.C.L. 104; 1 Cooley's Const. Lim. (8 Ed.) 341; State v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340; and State v. Edwards, 93 Miss. 704, 46 So. 964.

The constitutional provisions which counsel for the appellant claim are here violated, are the guaranty of trial by jury and the prohibitions against the deprivation of life, liberty, or property without due process of law, and against the infliction of cruel and unusual punishment.

The statute is said to violate the constitutional guaranty of trial by jury in two particulars: First, it requires the court to try a defendant charged with murder, although he may then be insane; and, second, it withdraws from the jury the determination of an essential element of the crime of murder, that is, the sanity of the defendant at the time of the homicide. The section of the Constitution here invoked is 26, which provides: "In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, . . . and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed."

The trial on a criminal charge of a person then so insane as to be unable to conduct his own defense or advise with his counsel relative thereto, or to be confronted, in the legal sense, with the witnesses against him, probably, and I will assume, would violate this section of the Constitution. But this statute does not expressly require a defendant to be tried while insane, and should not be held to do so by implication, unless the implication is clear and imperative. If the statute can be construed so as not to violate the Constitution, it is the duty of the court to do so, resolving all doubts in favor of a construction thereof that is in accord with the Constitution. State v. Wheatley, 113 Miss. 555, 74 So. 427, 428; Miller v. State, 130 Miss. 564, 94 So. 706; Staple Cotton Co-operative Association v. Hemphill, 142 Miss. 298, 107 So. 24; Robinson v. State, 143 Miss. 247, 108 So. 903; Shilling v. State, 143 Miss. 709,109 So. 737; State v. Miller, 144 Miss. 614, 109 So. 900; Thompson v. Box, 147 Miss. 1, 112 So. 597; Darnell v. Johnson, 109 Miss. 570, 68 So. 780; University of Miss. v. Waugh, 105 Miss. 623, 62 So. 827, L.R.A. 1915D, 588, Ann. Cas. 1916E, 522.

This implication is said to arise under section 2 of the statute, because of the requirement that "the trial judge may, in his discretion, certify to the governor that in his opinion the mental condition of the prisoner is such that he should not be confined in the penitentiary, in which event" he shall be placed in the institution for the care of the insane. This provision of the statute, it is said, contemplates the trial of persons then insane, for the reason that it authorizes the trial judge to certify to the governor immediately after conviction that the convict is then insane. I do not think the implication arises. In determining whether a defendant's mental condition is such that he should not be put on trial, the court has no concern with insanity at a prior period except in so far as it bears on his then mental condition. Moreover, the test of mentality sufficient to justify putting a defendant on trial and that by which his responsibility for crime is determined, are different. The implication, to say the most, is vague, and its existence debatable.

Coming now to the second objection to the statute under this section of the Constitution: It will be observed that the effect of the statute is to amend the definition of murder, so as to exclude therefrom the element of sanity. For instance, under section 985, Code 1930, the killing of a human being, without the authority of law, by any means, and in any manner, is murder when done with deliberate design to effect the death of the person killed, or of any human being. To this definition of murder the common law, unless otherwise provided by statute, adds the following — "and with knowledge and appreciation of the nature and quality of the act done."

The Legislature has full power to declare and define crime, and in so doing may exclude elements which theretofore, under the common law, had entered into an inquiry as to its commission. The guaranty of trial by jury requires that all questions of fact that enter into the judgment to be rendered shall be determined by a jury, but has no bearing on the power of the Legislature to amend the common-law definition of a crime so as to exclude therefrom elements included therein at common law. "The common law, as a portion of the law of the land, is recognized by the Constitution of this state, but is subject to be altered or repealed at the will of the Legislature." Noonan v. State, 1 Smedes M. 562.

The due process of law clauses of the federal and state constitutions protect the citizen from the arbitrary exercise of legislative power; and the test of the validity of a statute thereunder is "whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat. . . . And unless it clearly appears that the enactment has no substantial relation to a proper purpose, it cannot be said that the limit of legislative power has been transcended. To hold otherwise would be to substitute judicial opinion of expediency for the will of the Legislature, — a notion foreign to our constitutional system." Purity Extract Tonic Co. v. Lynch, 226 U.S. 192, 33 S. Ct. 44, 47, 57 L. Ed. 184; Hebe Co. v. Shaw, 248 U.S. 297, 39 S. Ct. 125, 63 L. Ed. 255; Ruppert v. Caffey, 251 U.S. 264, 40 S. Ct. 141, 64 L. Ed. 260.

If men may reasonably differ as to whether or not a statute bears a "substantial relation to a proper purpose," or, in the language of the United States Supreme Court, "if it be debatable, the Legislature is entitled to its own judgment, and that judgment is not to be superseded" by the personal opinions of judges "upon the issue which the Legislature has decided" Hebe Co. v. Shaw, supra, 248 U.S. 297, 39 S. Ct. 125, 63 L.Ed. at page 259, and Price v. Illinois, 238 U.S. 446, 35 S. Ct. 892, 894, 59 L. Ed. 1400.

The Legislature probably had in mind two purposes in enacting this statute: First, to render more effective the law against homicide by rejecting the defense of insanity as a cloak for crime, which defense the Legislature could very reasonably, in the light of our judicial history, believe to be manufactured in many instances, and that, as Justice WILBUR of the supreme court of California is quoted as having recently said: "Most pleas of insanity are made by sane people, who frequently go free, while most insane criminals make no insanity plea and are duly convicted and sentenced." Crime, Abnormal Minds and the Law — Hoag. And, second, to conserve the peace and safety of the people by confining a person who has taken human life while insane and may again do so. Both of these purposes are, beyond doubt, proper, and that the provisions of the statute have a substantial relation thereto seems clear. To say the least, they are debatable, and therefore "the Legislature is entitled to its judgment" in the matter. Much of what I shall hereafter say relative to the alleged conflict of the statute with the cruel and unusual punishment provision of the Constitution applies to the second before-mentioned purpose of the Legislature in enacting the statute, and should be considered herewith.

The ground on which, at common law, as interpreted by this court, an insane person is relieved of punishment for an otherwise criminal act, is that because of his insanity he was unable to know and appreciate the nature and quality of his act; insanity short of this is no defense. Smith v. State, 95 Miss. 786, 49 So. 945, 27 L.R.A. (N.S.) 461, Ann. Cas. 1912A, 23. There are many statutes, both state and national, particularly such as prohibit the sale of certain articles, by which knowledge is excluded from any inquiry into offenses committed under them.

In Chicago, B. Q.R. Co. v. U.S., 220 U.S. 559, 31 S. Ct. 612, 617, 55 L. Ed. 582, it is said that: "The power of the Legislature to declare an offense, and to exclude the elements of knowledge . . . from any inquiry as to its commission, cannot, we think, be questioned," citing numerous anthorities, among which is Halsted v. State, 41 N.J. Law, 552, 32 Am. Rep. 247, from which the following was quoted with approval: "As there is an undoubted competency in the lawmaker to declare an act criminal, irrespective of the knowledge or motive of the doer of such act, there can be, of necessity, no judicial authority having the power to require, in the enforcement of the law, such knowledge or motive to be shown. In such instances the entire function of the court is to find out the intention of the Legislature, and to enforce the law in absolute conformity to such intention."

The fear that a person who is totally deprived of reason and "is no more than a frame of bones and muscles" will be punished under this statute — I speak with deference — is without sufficient foundation in the statute to constitute a reason for declining to enforce it. A person without mentality sufficient to control his movements, rarely, if ever, kills, unless accidentally; and such persons "are practically never the objects of medico-legal inquiry." 1 Wharton and Stilles' Medical Jurisprudence (5 Ed.) 524; Erskine's Defense of Hadfield. Moreover, a person totally deprived of reason because of insanity rarely, if ever, recovers, and therefore could never be tried, under the rule which prohibits the court from trying a defendant when he is insane.

Theoretically, the statute may appear harsh, but the validity of a statute, under the due process clause of the Constitution, should be determined, not by its theoretical, but by its practical operation and effect. Compare Ex parte Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519.

"Insanity," that is, inability to know and appreciate the nature and quality of an act because of a mental defect, as a defense for the commission of crime, has been so long a part of the common law, and has become so firmly imbedded in the legal and judicial mind, that it has come to be regarded as one of the rights of the individual of which the state should not deprive him. I appreciate the force of this objection, but I think reasonable men may differ thereon.

The provisions of the second section of the statute for the confinement of a convict under it in the state insane hospital until he recovers his sanity, if then insane, is said to deprive him of due process of law, in that he is given no hearing thereon. If the Legislature has the power under the due process clause of the Constitution to exclude insanity as a defense to crime, it necessarily follows that it has the power to provide for the imprisonment of a person convicted, notwithstanding his insanity; and the placing of such a person in an insane hospital instead of an ordinary prison during the period after his conviction that he may continue insane cannot be claimed as a right, but as an act of grace, and therefore he cannot complain if he is not heard thereon.

Section 28 of the Constitution provides that, "Cruel or unusual punishment shall not be inflicted." This provision of the Constitution has never been construed by this court. In Ex parte McInnis, 98 Miss. 773, 54 So. 260, and Thomas v. Yazoo City,95 Miss. 395, 48 So. 821, 1041, statutes there under consideration were said not to violate it without any discussion of the section. In State v. Longino, 109 Miss. 125, 67 So. 902, Ann. Cas. 1916E, 371, the appellant was charged with the doing of an act which this court had said in State v. Traylor, 100 Miss. 544, 56 So. 521, did not come within the prohibition of section 1169, Code 1906. Afterwards, and before that case was overruled by State v. Rawles, 103 Miss. 806, 60 So. 782, the appellant committed the act which was said in the Traylor case not to be within the prohibition of the statute. In reversing the appellant's conviction and holding that the decision in the Rawles case should not operate retroactively but only prospectively, the court gave as one of its reasons for so holding "that the punishment of an act declared by the highest court of the state to be innocent, because the same court had seen fit to reverse its interpretation of a statute, would be the very refinement of cruelty; it is certainly unusual because no precedent can be found for its infliction; that it is unjust is perfectly obvious." The decision was not placed on the cruel and unusual punishment section of the Constitution, and the court did not say that the appellant would be protected thereby. What was there said in this connection was to reinforce the court's conclusion that its decision in the Rawles case should operate prospectively only.

This section of the Constitution was taken from the Federal Constitution, where it appears in Amendment 8, and that Amendment was taken from the bill of rights in the historic English statute passed at the beginning of the reign of William and Mary, entitled "An Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown," which, after enumerating many acts of tyranny by the Stuart Kings, among which were the requiring of excessive bail, imposing excessive fines, and inflicting illegal and cruel punishments, declared that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments, inflicted. All these prohibitions will be found, in haec verba, in the Eighth Amendment to the Federal Constitution, and in sections 28 and 29 of our state Constitution. Having adopted the very words in which these prohibitions are couched in the English statute, the framers of our Constitutions, under a well-recognized rule for construing Constitutions and statutes, should be held to have intended for them to serve the same purpose they were intended to serve in the English statute. What, then, did these words mean in that statute? A complete and historically accurate answer to this question will be found set forth and buttressed by authorities in the separate opinion of Chief Justice WHITE, concurred in by Justice HOLMES, in Weems, v. United States, 217 U.S. at page 390, 30 S. Ct. 544, 558, 54 L.Ed. at page 808, 19 Ann. Cas. at page 717:

"Whatever may be the difficulty, if any, in fixing the meaning of the prohibition at its origin, it may not be doubted, and indeed is not questioned by anyone, that the cruel punishments against which the bill of rights provided were the atrocious, sanguinary, and inhuman punishments which had been inflicted in the past upon the persons of criminals. This being certain, the difficulty of interpretation, if any, is involved in determining what was intended by the unusual punishments referred to and which were provided against. Light, however, on this subject, is at once afforded by observing that the unusual punishments provided against were responsive to and obviously considered to be the illegal punishments complained of. These complaints were, first, that customary modes of bodily punishments, such as whipping and the pillory, had, under the exercise of judicial discretion, been applied to so unusual a degree as to cause them to be illegal; and, second, that in some cases an authority to sentence to perpetual imprisonment had been exerted under the assumption that power to do so resulted from the existence of judicial discretion to sentence to imprisonment, when it was unusual, and therefore illegal, to inflict life imprisonment in the absence of express legislative authority. In other words, the prohibitions, although conjunctively stated, were really disjunctive, and embraced as follows: (a) Prohibitions against a resort to the inhuman bodily punishments of the past; (b) or, where certain bodily punishments were customary, a prohibition against their infliction to such an extent as to be unusual and consequently illegal; (c) or the infliction, under the assumption of the exercise of judicial discretion, of unusual punishments not bodily, which could not be imposed except by express statute, or which were wholly beyond the jurisdiction of the court to impose." See also Watson on Constitution, page 1510.

But I will concede, merely for the purpose of the argument, "that the cruel and unusual punishment clause does not merely limit the legislative power to fix the punishment for crime by excepting out of that authority the right to impose bodily punishments of a cruel kind, in the strict acceptation of those terms, but limits the legislative discretion (as is here claimed not only) in determining to what degree of severity an appropriate and usual mode of punishment may, in a particular case, be inflicted;" but also whether any punishment at all may, in a particular case, be inflicted, "thereby endowing the courts with the power to refuse to enforce laws punishing crime, if, in the judicial judgment, the legislative branch of the government has prescribed (either) a too severe punishment," or punishment when none should be inflicted.

We must not here be led astray by the use of the word "punishment," but must bear in mind that one purpose for the imprisonment of a person who has killed another while insane is to conserve the peace and safety of those with whom he would otherwise come in contact. The question therefore is: Is it cruel, in the constitutional sense, to imprison a person who has taken human life while insane?

The right of the state to confine persons whose mentality is such as to render them dangerous to the peace and safety of its people, or who, because of mental defects, have committed and may again commit acts dangerous to the peace and safety of the people, is not only undoubted, but is one of the state's duties, which practically all civilized governments seek in some way to discharge. The imprisonment here provided for, therefore, is neither cruel nor unusual unless made so by the nature and place of imprisonment and the fact that it continues though the insanity disappears.

Whether the place of confinement is designated as an institution, a hospital, or a prison, would seem to be unimportant, for by whatever name called it remains a prison, and is intended to be such for those confined there. And the mere fact that the criminal insane are confined in a prison instead of an ordinary institution for the insane cannot, in reason, be said to be cruel. Ex parte Brown, 39 Wash. 160, 81 P. 552, 109 Am. St. Rep. 868, 4 Ann. Cas. 488, 1 L.R.A. (N.S.) 540, and note thereto. The relative security of the two places would seem to require the prison instead of an ordinary institution for the insane.

But it is said that imprisonment for crime carries with it a stigma that renders its infliction cruel in the case of persons who were insane when the crime was committed. If this be conceded, the Constitution would not be violated. But no such stigma could here result, for the verdict of the jury establishes the insanity at the time of the commission of the crime, and therefore the absence of moral guilt.

Again, it may be said that while in prison the convict is subject to prison discipline, a part of which is that he shall engage in manual labor. I take it for granted that this labor will be of a humane character, as under the Constitution it must, and if it is, the convict is better off than he would be if idle, and, I dare say, he would not be permitted to remain wholly idle in a properly conducted institution for the insane, unless too insane for work of any kind.

Does the requirement of the statute that a person convicted under it shall be imprisoned without inquiry into, and without reference to, his sanity at the time of imprisonment, render the statute void? In other words, is it cruel within the meaning of the statute to imprison a sane man who has killed another while insane? I think it safe to say that our knowledge of insanity, of its cause, effect, treatment, and cure, are yet imperfect, and that the probability never entirely disappears of a relapse into insanity by one who has once been insane. If this is true, can it be said to be cruel to provide effectually against such a contingency in the case of one who has taken human life while insane, and may do so again?

The omission from statutes providing for the imprisonment of an insane person under a verdict of guilty but insane, of a provision for a discharge as a matter of right on the recovery of his sanity, is not infrequent, as will appear from the note to Ex parte Brown, supra. In Georgia, a special act of the Legislature is necessary therefor; in Massachusetts such a convict on the recovery of his sanity may be discharged by the governor with the advice and consent of the council; in England, the convict is committed to prison to await the pleasure of the king.

The statute in force when the one here under consideration was enacted, provides that: "When any person shall be . . . acquitted on the ground of insanity . . . if the jury certify that such person is still insane and dangerous, the judge shall order him to be conveyed to and confined in one of the state asylums for the insane." Section 1367, Hemingway's Code 1927, section 1540, Code 1906. This statute does not provide for the discharge of a person committed to an asylum under it on recovery of his sanity. In Caffey v. State, 78 Miss. 645, 29 So. 396, this court held that an appeal would not lie from such an order of commitment, but has not yet decided whether a person so committed is entitled to be released on recovery of his sanity.

There is one other matter that is not without value here. At common law, as interpreted by the courts of eleven of our sister states, "although there may have been a capacity to distinguish between right and wrong as to the particular act, still the party is not responsible if the jury find that by reason of mental disease he had so far lost the power to choose between right and wrong as not to be able to avoid doing the act, so that his free agency was at the time destroyed." This rule has been repudiated by this court, and the test of responsibility on the ground of insanity has been limited "to the capacity to distinguish between right and wrong, so that an irresistible impulse, even though it is claimed to have been an insane impulse, does not exempt one from responsibility for crime, where his mental capacity was such that he had a knowledge of right and wrong as to the particular act." It would seem to be just as cruel to punish a man for the doing of that which he was unable to resist, because of the duress of insanity, as to punish him for doing that which he could have refrained from doing, but did not know that it was wrong to do.

The statutes of several of the states provide for the sterilization of criminals and mental defectives. These statutes are held not to violate this section of the Constitution. Smith v. Wayne Probate Judge, 231 Mich. 409, 204 N.W. 140, 40 A.L.R. 515; Buck v. Bell, 143 Va. 310, 130 S.E. 516, 51 A.L.R. 855; Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000. When compared with those statutes, and remembering the purpose it was intended to accomplish, the statute here under consideration would seem also not to be cruel in the constitutional sense.

The cruelty of this statute, if such there is, fades into insignificance when compared with the cruelty which the law permits to be inflicted on insane criminals who do not come within the provisions of this statute. As hereinbefore said, insanity, other than such as prevents one from knowing and appreciating the nature and quality of an act committed, is no defense to crime. This test of the responsibility of an insane person is so narrow as to permit the punishment of, even the infliction of the death penalty on, persons who are so insane as to be morally irresponsible for their acts; and is founded on long obsolete medical views of mental disease. It is derived from the opinion of the judges to the House of Lords in 1843 in McNaughten's case, of which the Supreme Court of New Hampshire said: "It is probable that no ingenuous student of the law ever read it for the first time without being shocked by its exquisite inhumanity." State v. Jones, 50 N.H. 369, 9 Am. Rep. 242. Mr. Bishop was fully justified in saying "the memorials of our jurisprudence are written all over with cases in which those who are now understood to have been insane have been executed as criminals." 1 Bish. New Crim. Law (8 Ed.), section 390.

We have swallowed the camel, why strain out the gnat?

Though counsel for the appellant make no such contention, some of my brethren are of the opinion that this statute violates section 32 of the Constitution, which provides that: "The enumeration of rights in this constitution shall not be construed to deny and impair others retained by, and inherent in, the people."

This section, or one similar thereto, appears in most of the state constitutions, but I have been unable to find any discussion of it by any court, and, in so far as my research discloses, no statute has heretofore been brought by any court within its condemnation. The rights reserved by it to the people are rights not enumerated or set forth in other sections of the Constitution. The inquiry then is: First, what is the right claimed by the appellant? Second, is it included in the enumeration of rights in the Constitution? And if not, then third, is it a right that is inherent in the people?

As I understand the argument in this connection, it is that one has a natural and inherent right not to be held accountable for a crime committed while insane. If by this is meant a right not to be imprisoned for the commission of a crime while insane, then the right claimed is nothing more than the right to personal liberty, which right is "enumerated" in, and protected as fully as the Constitution intends by, section 14 thereof, which provides that: "No person shall be deprived of life, liberty, or property except by due process of law." This section authorizes the restraint of liberty, provided only it is restrained by due process of law. I have discussed this section elsewhere, but will pause here long enough to say that under the American form and conception of government, no one has any right that is superior to the general welfare, to which even life must yield, as evidenced by our death penalty statutes, the validity of which is undoubted.

But if it be said that the right here claimed is more than the right to freedom from restraint of the person, and is the right not to be declared a criminal for the commission of an act while insane and imprisoned as such, that the designation of an act committed by an insane person carries with it a stigma to which the state has no right to subject him; no such stigma results from a verdict of "guilty but insane," for by it the convict is absolved of all moral guilt. In determining whether an insane person should be imprisoned for the commission of an act while insane, the term by which the act is designated is of no consequence, for the only material consideration there is: Does the commission of the act demonstrate that because of his insanity he is, and unless confined will probably continue to be, a menace to society.

In one of the reports of the American Institute of Criminal Law and Criminology, published in volume 10 of the Journal of the Institute at page 186, it is said: "As a defense for crime, the irresponsibility of the criminal is, from the viewpoint of society, largely an academic question. The pragmatic feature of such a situation is that the offense has been committed and this remains a fact regardless of whether it is decided that the person committing it was irresponsible by reason of . . . insanity. . . . Society needs as much protection from the criminal acts of irresponsible individuals . . . as in the case of the responsible. Upon the above considerations this committee recommends the adoption of a program for development directed towards the following ends: (1) That in all cases of felony or misdemeanor punishable by a prison sentence the question of responsibility be not submitted to the jury, which will thus be called upon to determine only that the offense was committed by the defendant. (2) That the disposition and treatment (including punishment) of all such misdemeanants and felons, i.e., the sentence imposed, be based upon a study of the individual offender by properly qualified and impartial experts co-operating with the courts," etc. This report was approved by some of America's foremost criminologists high in the ranks of their respective professions of the law, medicine, and alienism, who evidently thought that no wrong was done an insane person by designating an act for which he is imprisoned for committing while insane as a felony or misdemeanor. As A. Moresby White, formerly of the English Bar, of which he was a distinguished member, but now of Los Angeles, California, recently said:

"No stigma attaches to a person who is found to have committed a criminal act and to have been insane at the time. ``Poor fellow' one says, ``he needs to be taken care of.' The mere finding of guilty or not guilty in such special cases would not create in the public mind any sense of shame about the accused, nor will it bring any disgrace upon him.

"Moreover we must remember that always first comes the public welfare and the public safety. Second comes the care for the innocent victim of the criminal act. Lastly should we deal with the accused party, but his interests ought not to be considered in preference to these other paramount securities of freedom." Journal of Criminal Law and Criminology, vol. 18, p. 174.

Finally it is said, not by counsel, but by some of my brethren, that the statute violates the equal protection of the laws provision of the Fourteenth Amendment to the Federal Constitution, in that it discriminates between the sane and insane by requiring the insane to be convicted and punished for murder on evidence that would require the conviction of a sane person of manslaughter only. Even if the statute should be construed as to so discriminate between the sane and insane, I doubt its conflict with the Constitution. But I am at a loss to see how it is reasonably susceptible of any such construction. Its provisions have no application where the accused is tried on an indictment for manslaughter, its express language being: "The insanity of the defendant at the time of the commission of the crime shall not be a defense against indictments for murder;" and the courts shall so instruct the jury in trials for murder; and the verdict to be rendered is not "guilty but insane," but "guilty as charged in the indictment but insane," i.e., guilty of murder but insane.

But an indictment for murder includes, generally, a charge of manslaughter, and if the evidence discloses that the homicide was not murder, but manslaughter, the jury can so find. Does the statute preclude the jury from finding an insane defendant, tried on an indictment for murder, guilty of manslaughter when the evidence discloses that such was the crime committed?

The statute is susceptible, in this connection, of only two reasonable constructions: First, it deals only with the crime of murder, and when the evidence negatives the commission of that crime, it leaves the question of guilt, vel non, of manslaughter to be determined by the law covering the commission of that crime. This would seem to be the proper construction of the statute, for it harmonizes it with the law of manslaughter which governs in trials on indictments for that crime. The Legislature could hardly have intended for insanity not to be a defense to the crime of manslaughter in trials on indictments for murder when it left that defense in full force and effect in trials on indictments for manslaughter. Moreover, statutes dealing with subjects covered by the common law are not to be understood as effecting any change therein beyond what is expressed or necessarily implied. Second, the statute expressly provides that "in trials for murder . . . evidence tending to prove the insanity of the defendant at the time of the commission of the offense may be offered by the defendant in mitigation of the crime," and further provides for the infliction of life imprisonment in the penitentiary only on a conviction of murder. The word "mitigate" means to reduce, and "mitigation" means reduction, so that the evidence of insanity permitted by the statute to be introduced in a trial for murder, may be for the purpose of reducing the crime to a lower grade, to-wit, manslaughter; the other elements of manslaughter being present, insanity would eliminate the element of malice, thereby reducing the crime from murder to manslaughter. The statute is certainly susceptible of such a construction, and without it, and on the face of the statute, the words "in mitigation of the crime" seem meaningless. The Legislature may have thought, as the fact probably is, that a homicide committed by an insane person under circumstances that would make the crime manslaughter if committed by one who is sane does not necessarily indicate that the person committing it is a menace to the peace and safety of society. Either of these constructions would prevent the statute from violating the equal protection of the laws provision of the Fourteenth Amendment of the Federal Constitution; and, under the rule I have hereinbefore set out, it is the duty of the court to adopt that construction of which the statute is susceptible that is in accord with the Constitution.

In conclusion, may I say that the enactment of this statute evidences an honest and sincere desire on the part of the Legislature to deal with one of the most perplexing problems of criminal law — that of the criminal insane. But, with deference, I suggest that the statute's purpose can be accomplished in a more humane, and, at the same time, a more effective manner, as will appear from an examination of the various reports of the American Institute of Criminal Law and Criminology, particularly the report published in volume 10 of the Journal of the Society at page 184, which I respectfully commend to the consideration of the Legislature.